5.41 p.m.

[Amendment No. 3 not moved.]

Clause 4 [Evidence to be received on appeals]:

Baroness Blatch moved Amendment No. 4:

Leave out Clause 4 and insert the following new clause:

Evidence

(".(1) In section 23 of the 1968 Act (evidence)
(a) in subsection (1) (power to receive evidence etc.), for paragraph (c) substitute
"(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.",
(b) for subsection (2) (duty to receive evidence in certain circumstances) substitute
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.", and
(c) in subsection (3), after "any" insert "evidence of a".
(2) In section 25 of the 1980 Act (evidence)
(a) in subsection (1) (power to receive evidence etc.), for paragraph (c) substitute
"(c) receive any evidence which was not adduced at the trial.",
(b) for subsection (2) (duty to receive evidence in certain circumstances) substitute
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to

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(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible at the trial on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence at the trial.", and
(c) in subsection (3), after "any" insert "evidence of a".").

The noble Baroness said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 21 and 22 which are consequential upon it, and also Amendments Nos. 23, 24 and 25 which amend the same section of the Act.

I should begin by apologising for the lateness with which these amendments were tabled. We had hoped to table them last Thursday so that they would have appeared on Friday's list, but in the event we were unable to do so. These amendments are all concerned with the receipt of fresh evidence by the Court of Appeal in England and Wales, and by the Northern Ireland Court of Appeal and the Courts-Martial Appeal Court which operate the same procedures.

At present, Section 23 of the Criminal Appeal Act 1968 contains two separate provisions on the receipt of evidence on appeal. The relationship between them is somewhat complex and has given rise to difficulties for the Court of Appeal. Subsection (1), which dates from 1907, provides a general discretion to receive the evidence of any witness where this would be in the interests of justice. It appears that by the 1960s the circumstances in which the Court of Appeal would exercise its discretion to admit fresh evidence in fact corresponded with the circumstances in which the court now receives it under subsection (2): namely, that it was relevant, credible, and admissible, and could not reasonably have been adduced at the original trial. Parliament responded in the Criminal Appeal Act 1966 (which was consolidated by the 1986 Act) by adding to the general discretion a narrower duty to admit fresh evidence if those conditions were satisfied.

The effect of this has been to create room for argument in appeal hearings about whether the court should receive evidence under the narrow, qualified duty in subsection (2) or under its general discretion in subsection (1). But the development of case law has rendered this into a distinction without a difference. If fresh evidence meets the criteria in subsection (2), it will always be in the interests of justice to receive it under subsection (1). Subsection (2) has in effect been subsumed into subsection (1), but that is obscured by the presence of two separate provisions on the statute book.

We have therefore taken the opportunity to devise amendments to improve the construction of Section 23. These are intended to provide a unified test for the receipt of fresh evidence which reflects the current practice of the Court of Appeal. The amendments retain the general discretion to receive the evidence of any witness in subsection (1). They replace the qualified duty in subsection (2) with a set of criteria to which the Court of Appeal is to have regard in considering whether to receive evidence. Those criteria are based on the existing tests in subsection (2). They require the

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court to have regard in particular to whether the evidence is capable of belief; whether it might afford any ground for allowing the appeal; whether it would have been admissible at the original trial, and whether there is a reasonable explanation for the failure to adduce it at trial. They accordingly retain the change effected by Clause 4 of the Bill, which these amendments replace, whereby the threshold for the receipt of fresh evidence is lowered to evidence which is "capable of belief".

The amendments also make it clear that the Court of Appeal is concerned under Section 23 with the receipt of fresh evidence rather than with evidence which has already gone before a jury at trial. This has always been the practice of the Court of Appeal.

We intend that these amendments should not in any way narrow the scope for the receipt of fresh evidence by the Court of Appeal. We have consulted the Lord Chief Justice about this and we are satisfied that the amendments would not alter the current practice of the court. I understand that the Lord Chief Justice is in full agreement with these amendments, though I hesitate to give his views on the matter before he has spoken. In particular, we do not think that there are any circumstances in which the court would decline to receive, under subsection (1), evidence which it would have received under subsection (2).

The amendments make equivalent provision for the receipt of fresh evidence by the Northern Ireland Court of Appeal and by the Courts-Martial Appeal Court so as to keep them in line with the Court of Appeal in England and Wales.

I turn now to the amendments to Schedule 3 to the Bill. These are minor and technical amendments which simply repeal a provision in Section 23(3) of the Criminal Appeal Act 1968 which no longer has any effect. When the Criminal Appeal Act was before Parliament, it was the law that the wife of a defendant was not compellable to give evidence on his behalf except on application by him; and vice versa. This reflected the law on the compellability of husbands and wives as set out in Section 1(c) of the Criminal Evidence Act 1898. Since then, the law has changed. The Police and Criminal Evidence Act 1984 repealed the relevant provision of the 1898 Act so that a husband or wife is compellable to give evidence on behalf of a defendant. That rendered the provision in subsection (3) redundant. However, Parliament did not take the opportunity in 1984 to remove this spent provision, and it has survivedpresumably unnoticeduntil now.

The other two amendments repeal the equivalent provision in the legislation on appeals in Northern Ireland and in relation to courts-martial. I beg to move.